Obama DOJ Likely to Again Enter This Litigation on Behalf of Plaintiffs and Argue that DOMA is Unconstitutional

Will the Administration Finally Agree to Hold All “DOMA” Green Card Petitions in Abeyance?

For the third time in a year, married same-sex binational couples who have been denied green cards are going to federal court to challenge the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). DOMA has already been struck down by federal district judges in several non-immigration related cases since 2010, and this new case would join the growing queue of such challenges. (See note below regarding the two DOMA challenges filed last year by binational couples in Los Angeles and Chicago.)

Today, five married gay and lesbian binational couples filed suit in the Federal District Court in the Eastern District of New York against the Attorney General, Eric Holder, Department of Homeland Security (DHS) Secretary, Janet Napolitano, and others, arguing that denial of green cards for the spouses of gay and lesbian Americans pursuant to Section 3 of DOMA constitutes a violation of the Equal Protection guarantee of the U.S. Constitution.

Lawyers for Stop the Deportations – the DOMA Project, which represents three dozen married binational couples who have filed for green cards, repeated their call for the Obama Administration to implement immediate moratorium on the denial of any green card petitions filed by married same-sex couples until this case has been fully litigated and there has been a final judicial determination on DOMA Section 3.

STATEMENT FROM STOP THE DEPORTATIONS – THE DOMA PROJECT:

Lavi Soloway, attorney and co-founder of the DOMA Project:

With the filing of this lawsuit, the Obama Administration has a clear opportunity to re-evaluate their policy of denying green cards on the basis of DOMA. The administration should immediately put on hold all green card petitions filed by gay and lesbian Americans for their foreign born spouses.

With the filing of this court case, all pending marriage-based petitions for gay and lesbian couples should be held in abeyance while the Department of Justice argues that DOMA is unconstitutional as applied to immigration benefits.

Stop the Deportations – the DOMA Project has called on President Obama and Secretary Janet Napolitano of the Department Homeland Security to ensure that all green card cases filed by lesbian and gay couples are fully adjudicated to determine that all eligibility criteria have been met. Once DHS has determined that these green card petitions would be approved but for DOMA, a final determination should be held in abeyance until a final judicial determination has been reached in the litigation announced today.

The bedrock foundation of our countries immigration law is to keep all families together; for too long, DOMA has undermined that principle, tearing apart LGBT families.

The White House website states: ’President Obama believes [that]… Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country.’ The administration’s current policy of denying green cards and refusing to hold cases in abeyance destroys marriages and tears apart families.

“Abeyance would mean that USCIS does not approve petitions, as DOMA prohibits approval, but also does not deny petitions. By abstaining from a final decision, most especially in light of the pending legal challenge to DOMA, USCIS would allow legally married lesbian and gay spouses to live together legally and safely within the United States. Abeyance would not contravene DOMA, and it is a reasonable and respectful policy until there is a final resolution of DOMA especially in light of the filing of the lawsuit today.”

Note: In January 2012, Chicago Federal District Court Judge Harry Leinenweber handed a victory to a married gay binational couple challenging DOMA when he denied the Motion to Dismiss filed by the Obama administration which argued that the case lacked “subject matter jurisdiction.” Judge Leinenweber allowed the case to proceed, and allowed the lawyers hired by House Republicans to defend the Constitutionality of DOMA in this case. In 2011, the Obama DOJ filed a brief in support of a gay binational couple in Federal District Court in Los Angeles in which it argued that denying a green card to the spouse of a U.S. citizen violated the constitution.

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.